# FILED
September 09, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JULY 1997 SES SION

STA TE OF TENN ESSEE, ) ) NO. 02C01-9607- CR-00230 Appellee, ) ) SHELBY COUNTY VS. ) ) Hon. Joseph B. Dailey, Judge AB RA HA M GA LMORE, ) ) (Especially Aggrav ated Rob be ry an d Appellant. ) Criminall y Negl igent Homic ide)

FOR THE APPELLA NT : FOR THE A PPELLEE : A. C. WHA RTON, JR. JOHN KNOX WALKUP Shelby Count

y Public Defender Attorney Gen eral and Repor ter W. MA RK WA RD (on ap peal) ELLEN H. POLLACK Assistant Publ ic Defender Assistant Att orney Gener al 147 Jefferson, Suite 900 450 James Roberts on Parkway Memphis, TN 38103 Nashvil le, TN 37243-0493 LOYCE D. LA MBERT (at trial) WILLIAM L. GIBBONS RONA LD S. JOHN SON (at t rial) Distric t Attorney General Assistant Public Defende rs Shelby County Public Defender’s Off ice TERRELL L . HA RRIS 201 Poplar Avenue, Second Floor DAVID C. HENRY Memphis, TN 38103 Assis tant District Atto rneys Gen era l 201 Poplar Avenue, Third Floor Memphis, TN 38103

OPINI ON FI LED:

AF FIRMED

JOE G. RI LEY, JUDGE2 OPINION

The defendant, Abraham Galmore, was conv icted by a Shelby Count yjury of especially aggravated robbery and cr im inally n egligent homicide. He was sentenced as a Career Offender to sixty (60) years and six (6) yea rs, re spec tivel y, forthe offenses. Defendant’s sole issue p resented o n appeal is w hether the tri al court erred in r uling that, if defendant chose to tes tify, the stat e could impeach him byinquiri ng on cross -examinati on if he had b een convi cted of a n unn ame d fe lony. The judgment of the tr ial court i s affirmed.

I.

Because defendant does no t challe nge the sufficienc y of the conv icting evidence, only a br ief recitation of the facts is necessar y. On Dec ember 14, 1993, de fendant and James Hathaway entered the Keyport Self -Storage Office i n Memphis. Elbert and M axine Swartz, w ho managed the establ ishment, resided on the premises. M r. and Mrs. Swartz were h el d at gunpoint w hile defendant and Hath away se arch ed th e res iden ce f or mo ney. At some pointduring the incident, Mr s. Swart z was shot, and her thr oat was cut. Mr. Swartz

was stabbed several times and shot, and his throat was cut. Mrs. Swartz surviv ed the incident; however , Mr. Swartz was p ronounced dead at the
scene. De fendant and Hathaway left the building with bank bags containin g approximately $3,000, as well as two (2) watches and other jewelry items. Def end ant s ubse quen tly con fes sed t o his involve men t in th e rob bery. After a jury t rial, defendant was found guilty of especially aggravated robbery and criminally negligent homicide. From these convictions, defe ndant brings this appeal.3 II.

Defendant’s sole assignment of error is that the trial court erred in ruling t hat, if he chose to testif y, the sta te would be allowed to impeach him by

inquiri ng on cross-examination if he had been conv icted ofan unnamed felony. He claims t hat the jury co uld o nly specul ate as to wh at the unnamed felony was, gi ving no guidance in theirassessment of his credibili ty. He con tends that this ru ling was the basis for h is refusal t o testify and, therefore, depriv ed him of his only

means of defending himself against the state’s charges. Pursuantto Tenn. R. Evid. 609(a)(3), the state gave written notice of its intent to impeach the def endant with six (6) prior b urglary con victions

and one (1) pr ior robbery convicti on. The trial court conducted a hearing pr ior to tri al to determineif the convicti ons’ probativ e value on theissue of credi bility outweigh ed the ir un fair prejudicial effect. The trial cour t ruled that th e state woul d be allow ed to use the six (6) prior burglary convictions for imp eachment purposes. Defendant does not contest this ruling. However, wit h regard to the robbery conviction, the trial court stated: The robberycase -- I agree that robbery is certai nly the ty pe of offense t hat could be used for impeachment purpos es if the defendant were not o n trial for a robbery

. In my opini on, to allow the offense of robbery -- the prior conviction for the off ense of robbery -- to ge t before t he jury, at least in th at form, would, in all li kelihood, cr eate a situation w here the prejudi cial effect outw eighed a n y prob ative value, . .

. So to use that robber y convi ction - at l east, in that for m - I will not a llow. But what I may a llow - an d I will have to wait and see -- I wil l rese rve ruling on this until at least the end of the State’s case- butI am inclined to allow the use of that conviction simply by asking, “Isn’t it true that you are the sam e Abraham Galmore t hat was conv icted of a felony on September

1, 1992, in indic

tment 92-02608, and received a sentence of X years,” or whatever? That, I think, w ould allow the State -- or

even perhaps

a felony involv ing -- Well, I might jus t leave [i t] at that, but-- or some wording to suggest a felony involving honesty or moral turpit ude - something of that -- I w ill gi ve that some c onsideration.

. . . So I will definitely allow the s ix b urglaries and I will, in all likelihood, allow t he seventh felony - the robber

y - but j ust to be asked in a different ma nner, and we can discu ss that further as y ou get1 Although it is argua blethat this entire issue is waived due to the failure to secure a definitiv e ruling

from the t

rial cou rt, subsequently

in the trial transcript it appears the trial court inten ded to abide by the earl ier ru ling.

2 In fairness to the trial

court, Summerall

was not filed until after the trial of this case. 4 closer to the close of y

our proof and De fense begins their determination as to wheth er they wantto call thei r client to the stand. 1 In State v. Summerall , 926 S.W.2d 272 (Tenn. Crim. App. 1995), this Cou rt held that it is error

to allow the state to impeach the defendant b y inqui ring w hether he had been convi cted of a n unn ame d fe lony. 2 In so holding, the court stated that “a ‘generic’ felony prov ides inadequat e information for the j ury to pr operly weigh its prob ative value.” Id . at 277. Thus, al lowing the state to mention the “g eneric” felony would have l ittle , if a ny, probative value. Consequently, the undue prejudicial ef fect of the unnamed felony out weighs its pr obative v alue. Id . However, our Court in Summerall did not specifically condemn the use of the words “felonies in vol ving dishonesty. ” Id .; see also State v. Ross Jones , C.C.A. No. 01C01-9405- CR-00175 (Tenn. Crim. App. fil ed February 8, 1995, at Nashv ille). Ba sed upon Summerall , however, the admission of a pr ior convi ction of “a felony ” without

further identification would have been imp roper. Our i n q u i r yd o e s n o t e n d h e r e , h o w e v e r . We must now deter mine whether the trial court’s r uling was rever sible erro r based upon the record before us. In order to make this det ermination, Tenn. R . Evid. 609( a)(3) must be analyzed

. Tenn. R. Evid. 609( a)(3) prov ides that an acc used “need not act ually tes tify atthe trial t o later chall enge the propriety of the determinatio n.” See State v. Bl anton , 926 S.W.2d 953, 959 (Tenn. Cri m. App. 1996). This rule is c ontrary t o Fed. R. Ev id. 609
as inte rpre ted b y Luce v. Uni ted States , 469 U.S. 38, 105 S.C t. 460, 83 L.Ed.2d 443 (1984). In Luce , the United St ates Supreme Cour t he ld that a non-testi fying defendant was not ent itled to purs ue an appeal on the basis that the trial court erred in ruli ng that the s tate co uld us e a pri or con vic tion t o impea ch him, shou ld he test ify. The Court noted that a n appell ate cou rt is “hand icappe d” from making a determination whether

the prejudic ial effect of the proposed impeachment evidence5

is outwe ighed by its p roba tive va lue when the court does not know the “precise nature of the defendant’s testi mony.” 469 U .S. at 41, 105 S.Ct. at 463. Moreover, the Court obser

ved that an ac cused’s deci sion to te sti fy “seldom tur ns on the resolution of one fact or,” and an appellate court “cannot assu me that the adverse ruling motivated a defendant’s de cision not to testify.” 469 U.S. at 42, 105 S.Ct. at 463. (citing New Jer sey v . Portash , 440 U.S. 450, 467 , 99 S.Ct. 1292, 1301, 59 L.Ed.2d 501 (1979 )(Blackmun, J., dissenting)). Several juris dict ions have opted to follow the United States Suprem e Court dire ctive in their s tate versi on of Rule 609 by requiring the defendant to test ify in order to properly

preserv e th e is sue on appeal. See Smith v. Stat e , 778 S.W.2d 947 (Ark. 1989) ; State v. Brown , 782 P.2d 1013 (Wash. 1989); Vaupel v. State , 708 P.2d 1248 (W yo. 1985). Othe r juris dict ions have r efu sed t o fo llow Luce and allow
a Rule 609 issue to be raised regardless of whether the ac cused testifies. See State v. Ford , 381 N.W.2d 30 (Minn. Ct. A pp. 1986); State v. Whitehead , 517 A.2d 373 (N .J. 1986); People v. Moore , 548 N.Y.S. 2d 344 (N.Y. App. Div . 1989) ; Commonwealth v. Ric hardson , 500 A.2d 1200 (Pa. 1985). Yet, other jurisdictions, while not compelling that the defendant actually testify to preserve the issue for purposes of appeal, do req uire t hat the defendan t create an adequate record concerning the proposed testi mony. See Wickham v. State , 770 P.2d 757 (Alaska Ct. App. 1989); State v. McClure , 692 P.2d 5 79 (Or. 1984); Hansen v. S tate , 592 So.2d 114 (Mis s. 1991). We find the third v iew to be t he most persuasi ve. Tenn. R. Evid. 609(a)(3) allows t he accused to raise the admiss ibility of prior convicti ons on ap pea l witho ut ac tual ly test ifyin g at tr ial; howeve r, we do not belie ve that its intent i s to mandate reversal w henever the t rial court wrongful ly rule s that a prior convicti on will be admissible if defendant testifies. Otherwi se, a defendant wi th
no intention of testif ying could automatically secure a reversal if the trial court improperly determined that a prior conv iction wou ld be admissibl e. In short, t he ab ility to raise the issue on appeal without tes tifying at trial does not necessaril y equate with reversal on appeal. At least two things must occur before a defendant whodoes not testify at trial3 In viewof the evidenc e and the admissibility o f six (6) pr ior burglary

convicti ons, we sincere

ly doubt that th

e proposed admissibility

of the generic felony

had any impact on hi s d ec is io n n ot to te st if

y. 6 can be successful on appeal based upon thetrial cour t’s rulin g on the admission of prior convi ctio ns. Fi rstly, it must appear from the record th at the defendant did not tes tify “beca use of an unfavorableruling o n admissibil ity of a pri or convic tion.” Tenn. R. Evid. 609, Advis ory Commis sion Comments. The b est method of addressing this issue is through the testimony of the def endant out of the presence of the jury . Secondly , the defendant should make an offer of proof as to the proposed trial test imony so that the appellate court will be able to assess the impact of the trial cour

t’s rulin g. State v. Bax

ter , 938 S.W.2d 697, 703 (Tenn. Crim. App. 1996); N. Cohen, D. Pai ne & Sheppeard, Tennessee Law of Evidence , § 609.9 (3d ed. 1995). We regret that th is procedure can be time-con suming for the al ready over-bur dened trial cour

ts. Never

theless, in l ightof the languag e of Tenn. R. Evi d. 609(a)(3) and the need of our appellat e courts to properly assess the i mpact of the trial cour t’s rulin g, such a pr

ocedure appears to be the only sensible sol ution. In the case sub judice , defendant h as f aile d to demonstrate that he was prejudiced by

the trial court’s r uling. Al though defendant acknow ledged out of the jury’ s prese nce that he unders tood the trial court’s pr ior ruli ng concerni ng the robbery convicti on and did not wish to testify, the record is silent as t o whether he intended to testify i f the generic fel ony was not admi tted. 3 Furthermore , there was
no offer of proof as to his pr oposed trial testimony. Having failed to demonstrate prej udic e, de fenda nt i s not enti tled to ap pell ate reli ef. In addition, any

error was clearly

harmless. Tenn. R . App. P. 36(b). The evidence against the defendant, including his confession, was overw helming. The trial court ruled that the state could impeach the defendan t with six (6) prior burglary convictions. It is well-settled that burglary convictions are prob ative on the issue of cred ibili ty. State v. Di shman , 915 S.W.2d 458, 463 (Tenn. Cr im. App. 1995); State
v. Tune , 872 S.W .2d 922, 927 (Tenn . Crim. App. 1993). As such, theseconvicti ons were clearly

admissible for impeachment purposes if defendant chose totest ify. Moreover, defendant does not contes t the admissibil ity of these convi ctions. In th e7

cont ext of the entire record, we conclude that t he trial court’s ruling as to the generic felony was at most harmless error.
Accordingl y, the judg ment of the trial court is affirmed.

JOE G. RILEY , JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

DAVID H. WELLE S, JUDGE